GUNS AND VIOLENCE FIGHTING THE CAREER OFFENDER GUIDELINE, ARMED by twa17837

VIEWS: 80 PAGES: 25

									                           GUNS AND VIOLENCE:
                FIGHTING THE CAREER OFFENDER GUIDELINE,
                    ARMED CAREER CRIMINAL ACT AND
                           GUN ENHANCEMENTS

                                            Suzanne Lachelier
                                Defender Services Division Training Branch
                                 Administrative Offices of the U.S. Courts
                                            Shaun S. McCrea
                                              McCREA, P.C.
                                             Attorney at Law
                                   1147 High Street, Eugene, OR 97401
                                          smccrea@callatg.com



                         GUN CASES: PRACTICAL CONSIDERATIONS

            Career offender (CO) or Armed Career Criminal Act (ACCA) enhancements often result from
a defendant being charged with gun charges (18 U.S.C. § 924 (c) or 18 U.S.C. § 929 (a) for CO or 18
U.S.C. § 924 (e) for ACCA. But even where a defendant is charged with “garden variety” ex-felon in
possession of a firearm charges, under 18 U.S.C. §922(g) the defendant’s sentence can be significantly
increased by sentencing enhancements.

             The defense attorney should take some simple steps at the beginning of any gun case which
can assist in the defense of the alleged gun violations or at least prepare for possible sentencing issues:

             (1) Go look at the gun or guns seized.

              Take an expert with you. An “expert” can be someone from the local sporting goods store, the
local rifle or trap shooting range or a retired police officer. Anyone who knows guns can qualify in court
as an expert. If you can’t find an “expert”, at least take an investigator with you. Take someone who can
photograph the gun(s) and document their condition. Particularly check to see whether you or your expert
can read the serial numbers. A gun which is stolen or has an altered or obliterated serial number will
increase a defendant’s sentencing level two points. United States Sentencing Guideline (U.S.S.G.) §
2K2.1 (b) (4). In many circuits the defendant does not even have to know that the gun was stolen. See e.g.
United States v. Singleton, 946 F.2d 23 (5th Cir. 1991); United States v. Goodell, 990 F.2d 497 (9th Cir.
1993) (court held the strict liability language of the section did not violate the defendant’s due process
rights);United States v. Goff, 314 F.3d 1248 (10th Cir. 2003).

             (2) Determine where the guns were located.

             If the gun was found inside a building, where? If it was found inside a vehicle, where?

             Location of the weapon can dramatically affect the defendant’s sentencing guideline range even
if he or she is not deemed a Career Offender or Armed Career Criminal. A defendant found with a gun
under the seat of car, next to a stash of cocaine or methamphetamine, may be found guilty of 18 U.S.C. §
924 (c) or at the very least, suffer a sentencing enhancement for possession of a firearm in connection with

    Page 1
any felony under U.S.S.G. §2K2.1 (b) (5). See e.g. United States v. Linson, 276 F.3d 1017 (8th Cir. 2002).
A sentence enhancement under U.S.S.G. §2K2.1 (b) (5) increases the offense level four levels or, if the
total offense level is under 18, this enhancement increases the offense to 18.

            U.S.S.G. §2K2.1 (b) (5) is not limited to possession of a firearm in connection with a drug
felony but includes in connection with any felony. A “felony offense” under U.S.S.G. § 2K2.1(b) (5) is
defined as “any offense (federal, state or local) punishable by imprisonment for a term exceeding one year,
whether or not a criminal charge was brought, or conviction obtained.” U.S.S.G. § 2K2.1 comment n. 7.

             The Ninth Circuit has established a two-prong approach for application of U.S.S.G. §
2K2.1(b) (5). First, the government must establish that the firearm was “used” in connection with another
felony (see: infra) and second, the government must prove that the weapon was actually or constructively
in the defendant’s possession and third, that the manner of its possession “permits an inference that it
facilitated or potentially facilitated a defendant’s felonious conduct.” United States v. Polanco, 93 F.3d
555, 566-67 (9th Cir.) cert denied 519 U.S. 73 (1996). See also: United States v. Routon, 25 F.3d 815, 819
(9th Cir. 1994).

           Possession of a firearm may be actual or constructive. Constructive possession requires
    three elements:
           (1) knowledge of the presence of the gun;
           (2) the power to exercise dominion and control over the gun; and
           (3) the intention to exercise dominion and control over the gun.
           United States v. Terry, 911 F.2d 272, 278 (9th Cir. 1990).

            Defense counsel should carefully note where guns were located when discovered, so an
    argument can be made at sentencing that a defendant had no knowledge of the gun, no power to
    control it or, at the very least, that the defendant had no intention to exercise dominion and
    control over the weapon in question.

             An enhancement under U.S.S.G. §2K2.1 (b) (5) may also include possession of ammunition
in connection with a felony (as well as possession of a gun). See e.g. United States v. Ennenga, 263 F.3d
499 ( 6th Cir. 2001). Determine early: was there any ammunition? Where was it in relation to the gun?
Did the ammunition fit the firearm seized?

             The term “in connection with” as used in U.S.S.G. §2K2.1 (b) (5) is equivalent to the phrase
“in relation to” as used in 18 U.S.C. § 924 (c) and as construed by the Supreme Court in Smith v. United
States, 508 U.S. 223, 113 S.Ct 2050, 124 L.Ed 2d 138 (1993). U.S. v. Scolaro, 299 F.3d 956 (8th Cir.
2002). See also: U.S. v. Spurgeon, 117 F.3d 641, 643-644 (2nd Cir. 1997); U.S. v. Hardin, 248 F.3d 489
(6th Cir. 2001); U.S. v. Polanco, 93 F.3d 555 (9th Cir.) cert denied 519 U.S. 73 (1996). The test, as
noted, supra, requires that the gun at least facilitate or have the potential of facilitating another felony
offense. In other words, the firearm must have been possessed in a manner that permits an inference that
it had some “potentially emboldening role” in a defendant’s felonious conduct. U.S. v. Ellis, 241 F.3d
1096, 1099 (9th Cir. 2001) quoting U.S. v. Routon, 25 F.3d 815, 819 (9th Cir. 1994).

             3) Persuade the government to stipulate factually concerning gun enhancement issues
                           or ask for proof by clear and convincing evidence

          If the prosecutor will not stipulate, or the defendant is facing multiple potential
enhancements, argue the government has an increased burden to prove the disputed sentencing
    Page 2
enhancements under a “clear and convincing evidence” standard. U.S. v. Jordan, 256 F.3d 922 (9th Cir.
2001); See also: U.S. v. Johansson, 249 F.3d 848 (9th Cir. 2001); U.S. v. Mezas de Jesus, 217 F.3d 638,
642-644 (9th Cir. 2000); U.S. v. Hopper, 177 F.3d 824, 833 (9th Cir. 1999). The burden of proof is on
the government. See e.g. U.S. v. Leasure, 319 F.3d 1092, 1096 (9th Cir. 2003).

            For example, a defendant convicted of possession of marijuana with intent to distribute along
with ex-felon in constructive possession of firearms may be an offense level 11 with a sentencing range of
18-24 months. If the Presentence Investigation Report (PSR) recommends multiple gun enhancements
that same defendant could be facing a fivefold increase and a sentencing range of 82-101 months. The
difference in potential prison time is dramatic and justifies placing a heavier burden of proof on the
government.

            But, where a defendant is charged with violating the felon in possession statute (18 U.S.C. §
922 (g)) and has three prior convictions for a violent felony, the government may not agree to forego a
§924 (c) (1) enhanced sentence. Application of §924 (c) (1) is mandatory and does not require government
agreement. U.S. v. Moyer, 282 F.3d 1311 (10th Cir. 2002).

             CAREER OFFENDER AND ARMED CAREER CRIMINAL CASES



    Career Offender                              Armed Career Criminal

    USSG enhancement                             statutory

    prior qualifying crimes depend on            qualifying priors last forever
    criminal history

    2 prior felonies for drugs or violence       3 prior felonies for serious drugs or violence

    present charge: drugs or violence            present charge: felon in possession (18 U.S.C. § 922 g)

    areas of attack: qualifying felony          areas of attack: qualifying felony
                      old prior                                  priors “committed on occasions different
                                                                 from one another.”

            An issue that differs markedly between the Career Offender Guideline provision and the
ACCA involves criminal history calculations. As a statutory enhancement, vice a Guideline enhancement,
the ACCA reaches back to use any qualifying prior convictions regardless of whether they are too old to
count in a client’s Guideline criminal history. Thus, even though an offense may not count for purposes
of an Armed Career client’s Guideline criminal history category, it may be used as a predicate offense to
trigger an ACCA enhancement. For the Career Offender enhancement, any prior conviction that might be
used to enhance must first be countable in the client’s criminal history – otherwise, it cannot serve as a
Career Offender predicate.

          There are a few areas of analysis that apply to both the Career Offender and ACCA
enhancements:

                   1. The Taylor “categorical approach” for analyzing potential predicate offenses
                   2. The government’s burden of proof in showing the prior convictions

    Page 3
                    3. whether the prior conviction can be challenged for violating the right to counsel as
               articulated in Gideon.

            Some questions presented by the Taylor analysis and associated case law, the burden of
proof, as well as the question of a Gideon violation, are discussed further below, after the individual
sections addressing particular issues in Career Offender and ACCA cases respectively.

    I. DETERMINING IF CLIENT IS CAREER OFFENDER

       A. BASIC REQUIREMENTS (Refer to U.S.S.G. §§ 4B1.1, and 4B1.2)

               Two (2) prior felony convictions for either

                                           1) crimes of violence
                                   OR
                                           2) controlled substance offenses

                                  In addition, the instant offense charged must be a crime of violence or
                   controlled substance
               offense. The Career Offender Guideline defines a “felony conviction” as an offense
               punishable by imprisonment for more than one year. U.S.S.G. § 4B1.2, comment (n.1).

       B. REVIEWING CRIMINAL HISTORY: Each prior conviction must count in client’s criminal
            history in order to qualify as a predicate conviction for Career Offender purposes. Each
            prior also must count separately, and not be deemed related.

                                   1. “RELATED CASES” U.S.S.G. § 4A1.2, comment (n.3)

                                    If two prior convictions are considered “related cases,” they are not
                       counted separately in criminal history. If they are not counted separately in
                       criminal history, each case cannot serve as a predicate conviction for Career
                       Offender purposes.

                                           a. DEFINITION:

                       “Prior sentences are not considered related if they were for offenses that were
                       separated by an intervening arrest [. . .] Otherwise, prior sentences are considered
                       related if they resulted from offenses that (A) occurred on same occasion, (B) were
                       part of a single common scheme or plan, or (C) were consolidated for trial or
                       sentencing.” U.S.S.G. § 4A1.2, comment (n.3)

                       Whether prior convictions are related under § 4A1.2 is a mixed question of law and
                       fact, subject to de novo review. U.S. v. Chapnick, 963 F.2d 224, 226 (9th Cir.
                       1992).

                                           b. “INTERVENING ARREST”



    Page 4
                       U.S. v. Gallegos-Gonzalez, 3 F.3d 325, 327 (9th Cir. 1993)(“sentences
         for offenses separated by an intervening arrest are always unrelated under section
         4A1.2 [. . .], regardless of whether the cases were consolidated for sentencing.”).
         Accord, U.S. v. Hunter, 323 F.3d 1314 (11th Cir. 2003); U.S., v. Aguilera, 48 F.3d
         327, 330 (8th Cir. 1995); U.S. v. Hallman, 23 F.3d 821, 825 (3d Cir. 1994). But
         see: United States v. Hayes, 342 F.3d 385 (5th Cir. 2003) (separate docket numbers
         and no factual relationship for offenses: one cocaine distribution, one for armed
         robbery and one for purse snatching. Concurrent but different sentences from one
         judge: cases consolidated for sentencing only therefore court could not say that
         prior convictions ARE related if they were NOT separated by an intervening
         arrest.)

                             c. CONSOLIDATED FOR TRIAL OR SENTENCING

         Generally, consolidated sentences are considered related, and thus do not count
         separately in criminal history calculations. U.S. v. Woods, 976 F.2d 1096 (7th Cir.
         1992). A consolidated sentence does not necessarily mean, however, that there are
         not separate convictions, for Career Offender purposes. Most circuits seek some
         indication, beyond a mere joint sentencing, in order to find that cases are “related,”
         for purposes of calculating criminal history. Some courts require a formal
         consolidation order. See U.S. v. Correa, 114 F.3d 314 (1st Cir. 1997); U.S. v.
         Gezler, 50 F.3d 1133, 1143 (2d Cir. 1995); U.S. v. Allen, 50 F.3d 294, 297-98 (4th
         Cir. 1995); U.S. v. Klein, 13 F.3d 1182, 1185 (8th Cir. 1994). But see, U.S. v.
         Huskey, 137 F.3d 283, 287 (5th Cir. 1998); U.S. v. Smith, 991 F.2d 1468, 1473 (9th
         Cir. 1993); U.S. v. Woods, 1096, 1100 (7th Cir. 1991).

                             d. “OCCURRED ON SAME OCCASION”

         U.S. v. Moreno-Arredondo, 255 F.3d 198, 207 (5th Cir. 2001)(“simultaneity is not
         an element of sameness”);U.S. v. Chapnick, 963 F.2d 224, 226-27 (9th Cir. 1992),
         superseded on other grounds as stated in U.S. v. Gallegos-Gonzalez, 3 F.3d 327
         (9th Cir. 1993); U.S. v. Connor, 950 F.2d 1267, 1270 (7th Cir. 1991)(federal and
         state convictions for different offenses resulting out of same arrest are offenses that
         occurred on same occasion and cannot be counted separately); U.S. v. Manuel, 944
         F.2d 414, 416 (8th Cir. 1991)(federal forgeries over fourteen-month period not
         related to state forgery five months later);

                     e. “SINGLE COMMON SCHEME OR PLAN”

         U.S. v. Mullens, 65 F.3d 1560, 1565 (11th Cir. 1995)(“convictions are part of a
         common scheme if ‘substantially connected to each other by at least one common
         factor, such as common victims, common accomplices, common purposes, or
         similar modus operandi.’ U.S.S.G. § 1B1.3, comment (n.9)’.” See also, U.S. v.
         Breckenridge, 93 F.3d 132, 138 (4th Cir. 1996)( significant to whether crimes
         “related” is whether they involved “similar substantive offenses”); U.S. v.

Page 5
           Chapnick, 963 F. 2d 224, 226 (9th Cir. 1992)(listing factors, proximity in time,
           identity of victims, arresting agency, when arrests occurred, number of
           investigations, that 9th Circuit considers).

         The proximity in time of the prior offenses is a central factor in determining whether
           the cases are related. The circuits have been inconsistent with each other in
           determining how proximate the prior crimes need to be, to qualify as related cases.
           See, U.S. v. Jones, 899 F.2d 1097, 1101 (11th Cir. 1990)(concurrent sentences for
           bank robbery and attempted bank robbery committed ninety minutes apart not
           related: different banks, separate trials, different sentences), overruled on other
           grounds by U.S. v. Morrill, 984 F.2d 1136 (11th Cir. 1993), distinguished in U.S. v.
           Moreno-Arredondo, 255 F.3d 198, 206 (5th Cir. 2001)(offenses need not occur
           simultaneously in order to be considered the same offense); see also, U.S. v.
           Houser, 929 F.2d 1369, 1374 (9th Cir. 1990)(two prior drug offenses for drug sales
           to single agent, with arrest product of single investigation, were related cases where
           would have been tried together but for fact that sales took place in different
           counties), overruled on other grounds by Buford v. U.S., 532 U.S. 59, 121 S.Ct.
           1276, 1280 (2001); U.S. v. Breckenridge, 93 F.3d 132, 139 (4th Cir. 1996)(six prior
           B&E convictions occurring over four-week period found “related”); U.S. v. Elwell,
           984 F.2d 1289, 1294-96 (1st Cir. 1993)(five separate bank robberies found
           “related” because deemed part of an overarching scheme to rob banks). See
           generally, U.S. v. Carter, 283 F.3d 755, 761 (6th Cir. 2002)(reviewing other
           circuits’ treatment of “common scheme or plan” question, and urging the Sentencing
           Commission to review the cases to resolve the inconsistencies). U.S. v. Hernandez,
           330 F.3d 964 (7th Cir. 2003) (1993 drug conviction not related to 1996 drug
           distribution conviction where no conviction for “conspiracy” even though sale of
           drugs in the same geographic area, involving same gang and close in time. COA said
           U.S.S.G. § 1B1.3 n. 8 example of cases not related fits here.) U.S. v. Herman
           Brothers, 316 F.3d 120 (2nd Cir. 2003) (prior convictions not part of a “common
           scheme or plan” where robberies took place five weeks apart, different participants,
           different victims, separate judgments for each conviction and not consolidated for
           sentencing under U.S.S.G. §4A1.2 n. 3).

                        2. “PRIOR SENTENCE”

           Only prior sentences for felony convictions are to be counted in criminal history.
           What constitutes a “prior sentence” is not always as evident as the term may seem.
           An offense committed after the instant offense, but for which the defendant is
           sentenced before, counts in criminal history, and thus is a qualifying predicate for
           Career Offender purposes. U.S.S.G. § 4A1.2(a)(1), comment (n.1); see also, U.S. v.
           Lara, 975 F.2d 1120, 1129 (5th Cir. 1992); U.S. v. Hoy, 932 F.2d 1343, 1345 (9th
           Cir. 1991). The fact that a prior case may be pending appeal when a defendant is
           being sentenced on the instant offense, does not preclude counting that prior case.
           U.S. v. Beddow, 957 F.2d 1330, 1337 (6th Cir. 1992); U.S. v. Mackbee, 894 F.2d
           1057, 1058 (9th Cir. 1990).


Page 6
                          3. APPLICABLE TIME PERIOD, U.S.S.G. § 4A1.2(e)

              Under this Guideline section, certain prior sentences do not count after a certain
              period of time (e.g., a sentence of less than 60 days’ imprisonment will towards
              defendant’s criminal history only if it was imposed within 10 years of the
              defendant’s commencement of the instant offense. U.S.S.G. § 4A1.2(e)(2)).
              It is worth reviewing this section of the Guidelines in evaluating any potential
              Career Offender predicate offense. The timing of when the sentence was imposed,
              when the instant offense commenced, when the defendant was released from the
              prior sentence of imprisonment, are all factors that play into whether that prior
              offense actually counts. These concepts must be carefully reviewed anytime a
              client is a potential Career Offender.

         4.       JUVENILE OFFENSES, U.S.S.G. 4B1.2, comment (n.1)

              The Career Offender provision applies where the defendant has “two prior felony
              convictions” for controlled substance offenses or crimes of violence. U.S.S.G.
              4B1.1(a). In the 4B1.2 application notes, a “prior felony conviction” is defined as:

                             A prior adult federal or state conviction for an offense
                             punishable by death or imprisonment for a term
                             exceeding one year, regardless of whether such
                             offense is specifically designated as a felony and
                             regardless of the actual sentence imposed. A
                             conviction for an offense committed prior to age
                             eighteen or older is an adult conviction. A conviction
                             for an offense committed prior to age eighteen is an
                             adult conviction if it is classified as an adult
                             conviction under the laws of the jurisdiction in which
                             the defendant was convicted (e.g., a federal conviction
                             for an offense committed prior to the defendant’s
                             eighteenth birthday is an adult conviction if the
                             defendant was expressly proceeded against as an
                             adult.)

              Accordingly, a juvenile adjudication (i.e., where the client was not proceeded against
              as an adult), does not count as a predicate for Career Offender purposes. See U.S.
              v. Mason, 284 F.3d 355 (4th Cir. 2002) (even though defendant was adult when
              sentenced for juvenile offense, was sentenced as juvenile, and therefore prior
              sentence could not count as predicate for Career Offender purposes); U.S. v.
              Hazelett, 32 F.3d 1313 (8th Cir. 1994). See also: United States v. Mason, 284 F.3d
              555 (4th Cir. 2002). The key is whether the defendant was tried as an adult. Even
              if defendant served the sentence in a juvenile facility, if he was tried as an adult (and
              received a sentence greater than a year and a month), the prior will qualify as a
              predicate for Career Offender purposes. U.S. v. Coleman, 38 F.3d 856, 861 (7th
              Cir. 1994); U.S. v. Carillo, 991 F.2d 590 (9th Cir. 1993)(same).



Page 7
                 5.       EXPUNGED CONVICTIONS

                      Expunged convictions are NOT counted in criminal history. See U.S.S.G. 4A1.2(j)1
                      Convictions referred to as “set aside” can be considered expunged; it will, however,
                      depend on the particular statutory provision affording the set-aside. See U.S. v.
                      Hidalgo, 932 F.2d 805, 807 (9th Cir. 1991) (set aside under California Welfare and
                      Institutions Code not counted in criminal history; conviction considered expunged
                      even if it was set aside for reasons unrelated to innocence or errors of law); U.S. v.
                      Kammerdiener, 945 F.2d 300, 301 (9th Cir. 1991) (conviction set aside pursuant to
                      the Federal Youth Corrections Act not counted); contra U.S. v. Wacker, 72 F.3d
                      1453, 1479-80 (10th Cir. 1995). See also, U.S. v. Hayden 255 F3d. 768, 773 (9th
                      Cir. 2001) (California Penal Code section authorizing set-aside of a conviction, but
                      providing that such conviction be considered in any subsequent criminal proceeding,
                      did not constitute “expungement” for Sentencing Guideline purposes); U.S. v.
                      Griffin, (150 F.3d 778, 787 (7th Cir 1998) (Texas conviction, “dismissed” after
                      service of probation, not considered “expunged” for U.S.S.G. purposes). The 1 st ,
                      2nd, 5th , 10th and D.C. Circuits, look to whether the given expungement statement
                      aims “to give defendant a fresh start,” and not “to correct errors of law or vindicate
                      innocence.” Only the latter type of case is deemed “expunged,” and therefore does
                      not count for Sentencing Guidelines purposes. See, U.S. v. Dubovsky, 279 F.3d 5
                      (1st Cir. 2002)(following 10th , 5th and DC Circuits); U.S. v. Driskell, 277 F.3d
                      150, 155 (2d Cir. 2002). See also, U.S. v. Greene, 187 F.Supp. 595, 600 (E.D. Va.
                      2002). A “deferred adjudication” may count as a prior felony conviction. U.S. v.
                      Joshua, 305 F.3d 352 (5th Cir. 2002) (Nolo contendre to robbery charge, plea
                      successfully discharged by deferred adjudication , conviction still held to be a “prior
                      felony conviction” for CO purposes.)

       C.        REVIEWING DEFINITIONS: IS PRIOR A “CRIME OF VIOLENCE” (COV)
                     OR “CONTROLLED SUBSTANCE” (C/S) OFFENSE?

            1.   DEFINITION: “CRIME OF VIOLENCE”

                                                  U.S.S.G. § 4B1.2(a) defines a “crime of violence” as:

                      Any offense under federal or state law, punishable by
                      imprisonment for a term exceeding one year, that
                             (1) has as ane element the use, attempted use,
                             or threatened use of physical force against the
                             person of another, or
                             (2) is burglary of a dwelling, arson, or
                             extortion, involves use of explosives, or


1       However, for general sentencing purposes, be aware that §1B1.3 (relevant conduct) still
applies, such that an expunged conviction, although precluded from qualifying as a predicate,
could be considered by the court in sentencing. A related concept is that a court may consider in
sentencing conduct for which a defendant has been acquitted, so long as the conduct is proven by
a preponderance of the evidence. U.S. v. Watts, 519 U.S. 148, 155, 117 S.Ct. 633 (1997).
Page 8
                 otherwise involves conduct that presents a
                 serious potential risk of physical injury to
                 another.

         An important fact to remember (and a difference with the ACCA, as seen below) is
         that state law characterizations of a prior conviction are not controlling here. An
         offense may be a COV even though the state labels it a misdemeanor.

         Whether the prior conviction constitutes a qualifying predicate “crime of violence”
         can only be answered by looking at the language of the underlying statute, and the
         elements required to sustain a conviction under that statute. If the circuit in which
         you practice has not ruled on whether the particular statute qualifies as a “crime of
         violence,” then the question is probably not settled.

                                     a. “CONDUCT THAT PRESENTS A SERIOUS
                                        POTENTIAL RISK OF PHYSICAL INJURY TO
                                        ANOTHER” U.S.S.G § 4B1.2

         The legal terrain is particularly murky if the government seeks to have a prior
         conviction qualify as a crime of violence, when that conviction is not for one of the
         enumerated crimes (burglary of a dwelling, arson, extortion). The government may
         seek to qualify a predicate under § 4B1.2(a)(2), by arguing the prior is an offense
         that “otherwise involves conduct that presents a serious potential risk of physical
         injury to another.”

         b) EXAMPLES:

         i.    ESCAPE FROM JAIL/CUSTODY: This offense, whether analyzed as a COV
                 or a “violent felony” under the ACCA’s section 924(e), has been determined
                 to be “conduct that presents a serious potential risk of physical injury to
                 another.” U.S. v. Nation, 243 F.3d 467, 472 (8th Cir. 2001)(“every escape,
                 even a so-called "walkaway" escape, involves a potential risk of injury to
                 others”); U.S. v. Harris, 165 F.3d 1062 (6th Cir. 1999)(escape under
                 Tennessee statute is COV); U.S. v. Dickerson, 77 F.3d 774 (4th Cir.
                 1996)(attempted escape is COV); U.S. v. Gosling, 39 F.3d 1140 (10th Cir.
                 1994)(escaping from county jail). But cf: government failed to prove that
                 prior “attempted escape” was a felony. United States v. Sun Bear, 307 F.3d
                 747 (8th Cir. 2002).

         ii.   DRUNK-DRIVING: U.S. v. Trinidad-Aquino, 259 F.3d 1140, 1146-47 (9th
                 Cir. 2001) (because California drunk-driving statute permitted conviction
                 under negligence standard, conviction under that statute cannot qualify as
                 COV; the term “use” of force implies some threshold intent); but see, U.S.
                 v. Farnsworth, 92 F.3d 1001 (10th Cir. 1996)(vehicular manslaughter -
                 California conviction - committed while under the influence and “with gross
                 negligence” is COV);U.S. v. Fry, 51 F.3d 543 (5th Cir. 1995)(causing the
                 death of another while driving under the influence is “conduct that presents

Page 9
                 a serious potential risk of physical injury to another”);U.S. v. Rutherford,
                 54 F.3d 370 (7th Cir. 1995)(vehicular assault by a drunk driver is COV);
                 United States v. Rubio, 317 F.3d 1240 (11th Cir. 2003) (driving under the
                 influence causing serious bodily injury is a crime of violence)

          iii. SEXUAL CONDUCT INVOLVING MINORS: Such offenses have ordinarily
                 been found to be COVs, falling under the “residual clause” as offenses which
                 present “a serious potential risk of physical injury to another.” U.S. v.
                 Coronado-Cervantes, 154 F.3d 1242 (10th Cir. 1998)(sexual contact with
                 minor); U.S. v. Hawkins, 69 F.3d 11, 13 (5th Cir. 1995); U.S. v. Bauer, 990
                 F.2d 373 (8th Cir. 1993)(statutory rape involving female under age sixteen,
                 regardless of consent); U.S. v. Pierce, 278 F.3d 282 (4th Cir. 2002) (taking
                 indecent liberties with a child).

          iv. POSSESSION OF A FIREARM BY A FELON: U.S.S.G. § 4B1.2, comment
                (n.2) states that unlawful possession of a firearm by a felon is not a crime of
                violence for Career Offender purposes. This amendment is retroactive. See
                U.S.S.G. § 1B1.10(c).
                This application note has been used to find that a conviction under a
                Missouri statute for possessing a concealed weapon was not a COV, in the
                context of determining whether the enhancement under § 2K2.1(a)(4)(A)
                (establishing a higher base offense level where a felon in possession has a
                previous conviction for a COV or C/S offense, as these terms are defined in
                4B1.2). See U.S. v. Crawley, 213 F.Supp2d 1250, 1258 (D.Kansas
                2002)(applying the categorical approach, and finding the Mo. statute
                involved no element that presented “a serious potential risk of physical
                injury to another”).
                There are notable loopholes, however, in the Sentencing Guideline
                application note precluding prior felon in possession conviction from
                counting as a predicate COV.
                One involves a relatively new amendment to the Sentencing Guidelines. If
                the instant offense charges a firearm violation under 18 U.S.C. § 924(c) or §
                929(a), then the Career Offender provision of U.S.S.G. § 4B1.1 & 4B1.2 can
                be triggered, if the defendant has the two required Career Offender
                predicates. See U.S.S.G. § 4B1.1(c) (added Nov. 2002).
                In addition, possession of a sawed-off shotgun by a felon, has been found to
                be a crime of violence. U.S. v. Brazeau, 237 F.3d 842 (7th Cir. 2001); U.S.
                v. Johnson, 246 F.3d 330 (4th Cir. 2001); U.S. v. Jennings, 195 F.3d 795
                (5th Cir. 1999); U.S. v. Drapeau, 188 F.3d 987 (8th Cir. 1999); U.S. v.
                Fortes, 141 F.3d 1 (1st Cir. 1998); U.S. v. Huffhines, 967 F.2d 314 (9th Cir.
                1992); U.S. v. Serna, 309 F.3d 859 (5th Cir. 2002).

                 A twist on this issue is when there is a prior conviction for possessing a
                 weapon while in prison. Cases consistently hold that such a prior
                 conviction constitutes “conduct that otherwise presents a serious potential
                 risk of physical injury to another,” and is therefore a COV. See U.S. v.
                 Kenney, 310 F.3d 135, 137 (3rd Cir. 2002)(possession of a razor blade by
Page 10
                      an inmate is a COV, regardless of inmate’s intentions); U.S. v. Vahovick,
                      160 F.3d 295, 296-98 (7th Cir. 1998)(inmate’s possession of pencils bound
                      together to serve as weapon is COV); U.S. v. Young, 990 F.2d 469 (9th Cir.
                      1993)(California conviction for possession of deadly weapon in prison is a
                      COV regardless of fact that the statute did not specify a requisite intent).

                      v. OTHER OFFENSES

                           First degree theft is a crime of violence in Iowa where defendant
                           knocked victim from his bike, kicked him in the ribs and face and
                           punched him before stealing personal property. U.S. v. Johnson, 318
                           F.3d 821 (8th Cir. 2003)


               c)   THE BURGLARY QUANDARY
                      All the case law addressing burglary offenses as predicates cannot be
                      discussed here. What is important to remember is that, even what seems
                      obviously answered in the Career Offender provisions of the Guidelines, is
                      not: although § 4B1.2(a) refers to “burglary of a dwelling” as a crime of
                      violence, courts differ on whether burglary of a commercial or other building
                      qualifies as a crime of violence. See U.S. v. Hoults, 240 F.3d 647 (7th Cir.
                      2001) (remanding for sentencing court to determine that prior burglary
                      conviction under Illinois statute required finding that dwelling was involved,
                      otherwise Career Offender provision should not have applied); U.S. v.
                      Bennett, 108 F.3d 1315 (10th Cir. 1997)(same, Oklahoma statute); U.S. v.
                      Harrison, 58 F.3d 115, 119 (4th Cir. 1995) U.S. v. Spell, 44 F.3d 936 (11th
                      Cir. 1995); but see, U.S. v. Chhien, 266 F.3d 1 (1st Cir. 2001)(burglary of a
                      commercial building constitutes crime of violence); U.S. v. Williams, 47 F.3d
                      993 (9th Cir. 1995)(although California first-degree burglary statute broader
                      because includes burglaries of buildings other than dwellings, prior
                      conviction under that statute here involved violence, as shown by
                      indictment that alleged defendant “willfully and unlawfully” entered); U.S.
                      v. Sawyer, 144 F.3d 191, 196 (1st Cir. 1998)(even though not an
                      enumerated offense along with “burglary of a dwelling, breaking and entering
                      of a building fits into clause for offenses that “otherwise involve conduct
                      that presents a serious risk of physical injury to another,” and thus qualifies
                      as COV). United States v. Wright, 340 F.3d 724 (8th Cir. 2003) (burglary of
                      dwelling even without victim present is COV)

          2.        “CONTROLLED SUBSTANCE OFFENSE”

                   Definition found in U.S.S.G. § 4B1.2(b).
               The term involves an offense (punishable by imprisonment exceeding one year)
               under federal or state law:
                              that prohibits the manufacture, import, expert,
                              distribution, or dispensing of a controlled substance
                              (or a counterfeit substance) or the possession of a

Page 11
                         controlled substance (or a counterfeit substance) with
                         intent to manufacture, import, export, distribute or
                         dispense.

          Think “trafficking” in drugs. Simple possession or use is not enough. Generally,
          prior drug convictions provide much less room for argument as to whether a given
          prior conviction qualifies as a predicate for Career Offender purposes. There are a
          few areas, however, where doors can be opened.

          a)   SIMPLE POSSESSION NOT A QUALIFYING PREDICATE

          See U.S. v. Neal, 27 F.3d 90, 92 (4th Cir. 1994); U.S. v. Vea-Gonzales, 999 F.2d
          1326, 1329, n.1 (9th Cir. 1993); U.S. v. Gaitan, 954 F.2d 1005, 1011 (5th Cir.
          1992); U.S. v. Galloway, 937 F.2d 542, 549 (10th Cir. 1991); U.S. v. Tremble, 933
          F.2d 925, 929 (11th Cir. 1991). Because simple possession is not a predicate, if the
          particular statute of prior conviction includes simple possession among the actions
          criminalized, the sentencing court will have to look beyond the statute to determine
          what action defendant was actually convicted of.

          b) VARIATIONS OF C/S OFFENSES: AIDING & ABETTING,
               CONSPIRACY, SOLICITATION, FACILITATION . . .

          Conviction for conspiring to commit a drug offense qualifies as a C/S offense.
          U.S.S.G. § 4B1.2, comment (n.1); see also, U.S. v. Lightbourn, 115 F.3d 291, 293
          (5th Cir. 1997); U.S. v. Seals, 130 F.3d 451, 463 (D.C. Cir. 1997). Application
          note 1 also specifies that aiding and abetting, and attempt offenses involving C/S
          offenses are Career Offender predicates.
          Other offenses, however, that may seem analogous to conspiracy or aiding and
          abetting, do not necessarily qualify as predicates. See, e.g., U.S. v. Dolt, 27 F.3d
          235, 238 (6th Cir. 1994) (prior Fla. conviction for solicitation to traffic in cocaine
          not a C/S offense where the Fla. solicitation statute was general, not applying to
          drugs specifically, and did not require intent to commit the underlying offense; also,
          Sentencing Guidelines did not specify that solicitation offenses should be
          included.); U.S. v. Liranzo, 944 F.2d 73, 79 (2d Cir. 1991)(prior NY state
          conviction for criminal facilitation did not have as an element the intent to commit
          the underlying offense, which here involved drugs, and therefore could not qualify
          as C/S offense); U.S. v. Wagner, 994 F.2d 1467, 1474 (10th Cir. 1993)(possession
          of a listed chemical with intent to manufacture a controlled substance is not a C/S
          offense where the chemical was not itself a controlled substance). In accord: United
          States v. Walterman, 343 F.3d 938 (8th Cir. 2003) (lithium is not a listed chemical).

               c.     MAINTAINING A PLACE TO FACILITATE A C/S OFFENSE

          An example in Application Note 1 to § 4B1.2 further suggests the importance of
          looking at the statute of conviction, and the underlying facts. This note addresses
          21 U.S.C. 856, maintaining a place for purpose of facilitating drug offense. In what
          seems to be circular reasoning, the note states that 21 U.S.C. § 856 is a C/S offense

Page 12
                if the drug offense facilitated is itself a C/S offense. Essentially, where the client
                has a prior conviction under this (or a similar) statute, it would be necessary to
                determine what client actually pled to using the place for: the conviction may not be
                a C/S offense if the place was maintained to facilitate drug use. See U.S. v. Baker,
                16 F.3d 854, 857 (8th Cir. 1994) (remanding, because jury conviction, for prior
                violation of 21 U.S.C. § 856, was vague, and sentencing court needed to determine
                whether conviction was for managing residence for drug distribution - a c/s offense,
                or for drug use - not a c/s offense).

                D. DOWNWARD DEPARTURES AND ROLE ADJUSTMENTS

                No minor role reduction if sentence would result in an offense level below career-
                offender minimum. United States v. Perez, 328 F.3d 96 (2nd Cir. 2003); United
                States v. Jeter, 329 F.3d 1229 (11th Cir. 2003) (no minor role adjustment; rule of
                lenity does not apply)

                Downward departure argument: career offender status overstated seriousness of
                defendant’s criminal history rejected. United States v. Hutman, 339 F.3d 773 (8th
                Cir. 2003); United States v. Diaz, 296 F.3d 680 (8th Cir. 2002) (en banc).
                Downward departures for over representation criminal history specifically
                provided for in U.S.S.G. § 4A1.3 but district court cannot make a comparison
                between defendant and “ordinary” or usual Category VI defendant who has 12
                criminal history points under U.S.S.G. § 5K2.0; court must look at whether
                defendant falls outside “heartland” of most career offenders. United States v.
                Adams, 329 F.3d 1196 (11th Cir. 2003). Defendant denied downward departure.
                He did not challenge CO status but argued criminal history over representative
                because defendant young at time of conviction, conviction only for marijuana, least
                serious class of convictions and suspended sentence. COA said denial not
                reviewable. United States v. Ridge, 329 F.3d 535 (6th Cir. 2003).

                E. PROOF AT SENTENCING

                Under categorical approach outlined in Taylor v. U.S., 495 U.S. 575 (1990) (infra),
                trial court to look only to the fact of conviction and statutory definition of the prior
                offense. Where statutory definition may include both violent and non-violent
                offenses, court may look to charging document and jury instructions. Here court
                looked to police report. Police report permitted to confirm conviction where
                defendant did not object and failed to challenge accuracy of copy of police report
                attached to PSR. U.S. v. Delgado, 288 F.3d 49 (1st Cir. 2002).

II.   DETERMINING IF CLIENT IS AN ARMED CAREER CRIMINAL
      U.S.S.G. § 4B1.4 & 18 U.S.C. 924(e)

  A. REQUIREMENTS:

                          Client presently charged with 18 U.S.C. 922(g) (felon in possession)
      Client has THREE (3) prior convictions for either:

                                    1) a “serious drug offense.” - (18 U.S.C. § 924(e)(2)(A)),
Page 13
                             OR
                                     2) a “violent felony” - (18 U.S.C. § 924(e)(2)(B))

          The three prior convictions must have been committed “on occasions different from one
          another.” 18 U.S.C. 924(e)(1). The prior felonies must have been punishable by 10 years
          or more. 18 U.S.C. § 924

                  B.    REVIEWING DEFINITIONS: IS THE PRIOR A “SERIOUS DRUG
          OFFENSE” OR A “VIOLENT FELONY?”

          1.   “VIOLENT FELONY”

                              Under 18 U.S.C. § 924(e)(2)(B), "violent felony" means:
                 any crime punishable by imprisonment for a term exceeding
                 one year, or any act of juvenile delinquency involving the use
                 or carrying of a firearm, knife, or destructive device that
                 would be punishable by imprisonment for such term if
                 committed by an adult, that –
                                 (i) has as an element the use, attempted use, or
                                 threatened use of physical force against the person of
                                 another; or
                                 (ii) is burglary, arson, or extortion, involves use of
                                 explosives, or otherwise involves conduct that
                                 presents a serious potential risk of physical injury to
                                 another
                 Despite different definitions, the determination of what predicate convictions
                 qualify as “violent felonies” or “serious drug offenses” under the ACCA is very
                 similar to those that qualify as COVs or C/S offenses under the Guidelines’ Career
                 Offender provision. See, e.g., U.S. v. Delgado, 288 F.3d 49, 53 (1st Cir.
                 2002)(“Although the definition of “violent felony” is not identical to the definition
                 of “crime of violence,” we look generally to cases pertaining to either provision to
                 ‘elucidate the nature of the categorical inquiry.’”), citing U.S. v. Shepard, 231 F.3d
                 56, 63, n.7 (1st Cir. 2000). One difference in interpretation, involving whether to
                 include aiding and abetting, conspiracy, and attempt to commit a violent felony, is
                 discussed below.
                 Once again, as with the Career Offender definition of “crime of violence,” the
                 ACCA definition of “violent felony” includes the nebulous language “otherwise
                 involves conduct that presents a serious potential risk of physical injury to
                 another.” Some examples of how the “violent felony” provision has been
                 interpreted are provided below.

                      a.     EXAMPLES

                 i.   ESCAPE FROM CUSTODY: A prior conviction for escape from a custodial
                        facility has been held, in all circuits to address the question, to be a crime
                        involving a serious potential risk of physical injury to another.” U.S. v.
                        Jackson, 301 F.3d 59 (2d. Cir. 2002) (Florida escape statute); U.S. v.
                        Hairston, 71 F.3d 115 (4th Cir. 1995)(felony escape under N.C. statute);

Page 14
                 U.S. v. Houston, 187 F.3d 593 (6th Cir. 1999) (1966 Tennessee escape
                 statute); U.S. v. Moudy 132 F.3d 618 (10th Cir. 1998) (court does not
                 reference statute of conviction, but makes general finding that escape is a
                 “violent felony,” just as it is a COV under Gosling (above)); U.S. v.
                 Franklin, 302 F.3d 722 (7th Cir. 2002); U.S. v. Abernathy, 277 F.3d 1048
                 (8th Cir. 2002) (doesn't matter that defendant “merely walked away”).

          ii) POSSESSION OF FIREARM BY FELON: Some courts have found that,
                because possession of a firearm by a felon is not a “crime of violence” for
                Career Offender purposes, it cannot be deemed a “violent felony,” since
                924(e) uses the same language as the Career Offender provision to define
                “violent felony.” See Royce v. Hahn, 151 F.3d 116, 120 (3rd Cir. 1998);
                U.S. v. Hill, 131 F.3d 1056, 1062 (D.C. Cir. 1997); U.S. v. Oliver, 20 F.3d
                415 (11th Cir. 1994); U.S. v. Garcia-Cruz, 978 F.2d 537 (9th Cir. 1992);
                U.S. v. Doe, 960 F.2d 221 (1st Cir. 1992).
                Following the Career Offender analysis that weapons in prison present a
                “serious potential risk of physical injury,” the Tenth Circuit has held that
                conveying a firearm in a federal prison is a “violent felony” under the
                ACCA. U.S. v. Romero, 122 F.3d 1334, 1340-41 (10th Cir. 1997).

          iii) AIDING & ABETTING, CONSPIRACY, ATTEMPT: Unlike the Sentencing
                 Guidelines, which specify that aiding and abetting, conspiracy, and attempt
                 crimes can qualify as predicates offenses for Career Offender purposes if
                 the underlying offense is a COV or C/S offense, the ACCA does not
                 specifically include these offenses where offenses involving a “serious
                 potential risk of physical injury” are concerned. See U.S.S.G. § 4B1.2,
                 comment (n.1); see U.S. v. Martinez, 954 F.2d 1050, 1054 (5th Cir.
                 1992)(noting that the ACCA does not include attempts, and holding that a
                 conviction for attempted burglary under Texas law, because it does not
                 require an entry into a building, does not involve conduct that “presents a
                 serious potential risk of physical injury,” and therefore does not qualify as
                 “violent felony.”); U.S. v. Strahl, 958 F.2d 980, 984 (10th Cir.
                 1992)(finding that although Utah burglary statute includes all the elements
                 of common law burglary, conviction under Utah attempted burglary law
                 does not require an entry, and therefore does not constitute a violent felony
                 under ACCA); U.S. v. Weekley, 24 F.3d 1125 (9th Cir. 1994)(same, with
                 respect to conviction for attempted burglary under law of Washington
                 state); U.S. v. Anderson, 989 F.2d 310, 313 (9th Cir. 1993)(conviction for
                 attempting to get money by threatening harm, being only an attempt, did
                 not constitute “extortion” and thus was not a “violent felony” under
                 ACCA); see also, U.S. v. Jackson, 113 F.3d 249, 253 (D.C. Cir.
                 1997)(recognizing that Md. attempted housebreaking conviction may not
                 qualify as violent felony); but see, U.S. v. Collins, 150 F.3d 668, 671 (7th
                 Cir. 1998)(conviction for attempted burglary under Wisc. statute could not
                 be sustained without having created a serious potential risk of physical
                 injury to another); U.S. v. Bureau, 52 F.3d 584, 593, (6th Cir. 1995); U.S. v.

Page 15
                 Andrello, 9 F.3d 247, 250 (2nd Cir. 1993)(attempted 3rd degree burglary
                 under NY law, which required more than “mere preparation” to commit a
                 burglary, is a violent felony).

                 Despite the fact that the ACCA does not include a reference to these
                 offenses, some have been found to be predicates nonetheless. See, e.g., U.S.
                 v. Hawkins, 139 F.3d 29, 33 (1st Cir. 1998)(reasoning that interpretations
                 of COV are persuasive in reading ACCA, and therefore finding that prior
                 conviction for conspiracy to commit armed robbery was qualifying
                 predicate to defendant's being sentenced under ACCA). The reasoning of
                 such holdings, however, should be analyzed, because some cases leave open
                 the possibility that a conviction for such an offense may not always qualify
                 as a predicate, if the actual findings made in the previous conviction do not
                 encompass the conduct sought to be reached in the ACCA. See U.S. v.
                 Davis, 16 F.3d 212, 218 (7th Cir. 1994)(attempted burglary conviction
                 under Ill. law qualified as predicate for ACCA absent proof, evidenced by
                 charging paper or jury instructions, that predicate attempted burglary
                 conviction was not based on type of conduct encompassed within generic
                 burglary definition of unlawful entry into building).

          iv) BURGLARY: Unlike the Career Offender provision, the ACCA does not limit
                the scope of “violent felony,” to “burglary of a dwelling.” Here, therefore,
                the Career Offender “crimes of violence,” and the ACCA’s “violent felony,”
                differ distinctly. See generally, Taylor v. U.S., 495 U.S. 575, 598-99
                (1990); see also, U.S. v. Wilson, 168 F.3d 916, 926 (6th Cir. 1999).
                Because of the ACCA does not narrow the qualifying predicate of burglary
                to “dwellings,” burglaries of buildings more generally, can qualify as
                predicate convictions for ACCA purposes. See U.S. v. Woods, 233 F.3d
                482 (7th Cir. 2000)(Illinois conviction for burglary of an unoccupied, closed
                commercial building is “violent felony” under ACCA).
                     The defense battle ground for challenging a prior state burglary
                conviction usually entails a state statute that includes in its definition of
                burglary not only buildings, but cars, boats, and other items beyond the
                traditional “building,” considered in common law burglary. In such
                instances, the sentencing court, per Taylor, 495 U.S. at 602, will have to
                examine underlying documents (indictment, judgment of conviction . . .), to
                determine, if possible, the precise conduct for which the defendant
                previously was convicted. See, e.g., U.S. v. Cooper, 302 F.3d 592, 596 (6th
                Cir. 2002)(although Ohio statute criminalized entering into structures other
                than buildings, where indictment specified a building only was involved,
                jury must have found defendant entered a building, and therefore defendant
                had been convicted of burglary within the meaning of ACCA); U.S. v.
                Stephens, 237 F.3d 1031 (9th Cir. 2001) (considering Alaska burglary
                statute, which criminalized breaking into "any propelled vehicle or structure
                adapted for overnight accommodation of persons or for carrying on
                business;” court looked to prior indictments, and found these referred to
                buildings in the traditional sense, and therefore convictions under those
                indictments qualified as ACCA predicates). See also: U.S. v. Melton, 334
Page 16
                 F.3d 1021 (9th Cir 2003) ( Virginia burglary offense is not COV because
                 defined to include breaking and entering dwellings, ships, vessels, railroad
                 cars and automobiles. But, armed robbery under Virginia common law does
                 qualify as COV because definition of taking with the intent to steal the
                 property of another against his will by violence or intimidation. Another
                 area where prior “burglary” convictions might be challenged exists where the
                 statute of conviction does not specify a requisite criminal intent. See U.S. v.
                 Peterson, 233 F.3d 101, 109 (1st Cir. 2000)(finding Rhode Island breaking
                 and entering statute could not qualify as “burglary” predicate for ACCA
                 where that statute lacked a criminal intent and Congress defined burglary
                 under ACCA as including a criminal intent requirement).

                 No “absolute bar” to use of police reports and complaint applications to
                 establish burglary. U.S. v. Shephard, 348 F.3d 308 (1st Cir. 2003).

               v. SEXUAL CONDUCT INVOLVING MINORS

                  Alaska statute qualifies as COV where defines sexual contact with a person
               18 or younger because of serious potential risk of physical injury to another.
                 U.S. v. Melton, 334 F.3d 1021 (9th Cir. 2003); U.S. v. Moyer, 282 F.3d
                 1311 (10th Cir. 2002) (sexual assaults on children under 12).


               vi. OTHER OFFENSES

                      Flight to avoid arrest is a crime of violence. U.S. v. Howze, 343 F.3d
                      919 (7th Cir. 2003). Resisting arrest may be a COV. U.S. v. Wardrick,
                      350 F.3d 446 (4th Cir. 2003). Robbery where defendant steals a bicycle
                      from its rider was held a crime of violence because of the risk of injury.
                      Id. Most circuits hold that theft from a person is a crime of violence
                      under ACCA. U.S. Griffith, 301 F.3d 880 (8th Cir. 2002); U.S. v.
                      Payne, 163 F.3d 371 (6th Cir. 1998). Armed robbery is a COV under
                      Virginia common law according to the Ninth Circuit. U.S. v. Melton,
                      334 F.3d 1021 (9th Cir. 2003). Armed robbery even where none of
                      Indiana conviction elements showed use or attempted use of force and
                      the crime was not a listed offense, crime still COV where qualified
                      under “otherwise” prong of 18 U.S.C. § 924 (e) (2) (B), i.e. presented
                      serious risk of physical injury to another. PSR said only conviction for
                      “felony while armed”. U.S. v. Hurlich, 348 F.3d 1219 (10th Cir. 2003).



          2.   “SERIOUS DRUG OFFENSE”

               A “serious drug offense” is defined in 18 U.S.C. § 924(e)(2)(A) as:

                 An offense under the Controlled Substances
                 Act (21 U.S.C. § 801 et seq.), the Controlled
                 Substances Import and Export Act (21 U.S.C.
Page 17
                  951 et seq.), the Maritime Drug Law
                  Enforcement Act (46 U.S.C. App. 1901 et
                  seq.), for which a maximum term of
                  imprisonment of ten years or more is
                  prescribed by law; or

                  An offense under State law, involving
                  manufacturing, distributing, or possessing
                  with intent to manufacture or distribute, a
                  controlled substance (as defined in Section 102
                  of the Controlled Substances Act, 21 U.S.C.
                  802), for which a maximum term of ten years
                  or more is prescribed by law.

           As noted earlier in this section, courts have relied upon Career Offender cases in
           determining whether a particular offense is a predicate under the ACCA, and vice
           versa. See U.S. v. Brandon, 247 F.3d 186, 192, n.3 (4th Cir. 2001); U.S. v.
           Shepard, 231 F.3d 56, 62, n.7 (1st Cir. 2000)(“despite the differences between
           4B1.1 and 924(e)(2), the categorical approach applies to both provisions and we
           may look to the 4B1.1 cases to elucidate the nature of the categorical inquiry”).
           The section above, addressing “controlled substance offenses,” and the Taylor
           categorical approach, discussed below, should be referred to.

           Aiding and abetting offenses, attempts and conspiracies are not specifically
           included in the ACCA definition of “serious drug offense.”

           Despite the ACCA’s silence regarding these inchoate offenses, two cases worth
           noting have held that the ACCA definition of “serious drug offense” does include
           conspiracy. U.S. v. King, 325 F.3d 110, 113 (2nd Cir. 2003) (fact that under New
           York law, person could be convicted of attempt to commit an offense only if shown
           that he came “within dangerous proximity to the criminal end to be attained,” made
           conviction for attempted possession of cocaine a “serious drug offenses” within
           ACCA meaning); U.S. v. Trope, 31 F.Supp.2d 417, 421-22 (M.D. Pa.
           1997)(conspiracy to deliver methamphetamine is “serious drug offense” under
           ACCA; the elements of the underlying offense are subsumed in Pa.’s conspiracy
           statute).

      C.       REVIEWING THE PRIORS

           As noted earlier, prior convictions count forever, for purposes of the Armed Career
           Criminal Act. See U.S. v. Wright, 48 F.3d 254 (7th Cir. 1995). That is, although
           priors may be too old to count in criminal history under the Guidelines, they still
           can be predicates under the Armed Career Criminal Statute. See U.S.S.G. § 4B1.4,
           comment (n.1).

           Moreover, the term “conviction” includes a finding that a person has committed an
           act of juvenile delinquency involving a violent felony. 18 U.S.C. § 924(e)(2)(C).


Page 18
               Nonetheless, there is language (somewhat buried) in the ACCA that leaves some
               room for discussion as to whether certain priors actually qualify as predicates . . .

          1.      “COMMITTED ON OCCASIONS DIFFERENT FROM ONE
               ANOTHER”

               The ACCA’s references to prior offenses having been “committed on occasions
               different from one another” does not have the same meaning as the Guideline’s
               relatedness concept of “committed on the same occasion.” See U.S. v. Moreno-
               Arredondo, 255 F.3d 198, 206-07 (5th Cir. 2001).

               Unfortunately, the ACCA meaning of “committed on occasions different from one
               another” has been interpreted quite narrowly, such that the focus becomes whether
               the victims are different, or the time of commission of the crimes is not the same.
               U.S. v. Hobbs, 136 F.3d 384, 388, n.8 (4th Cir. 1998)(comparing ACCA analysis
               with Career Offender concept of “related cases,” and noting ACCA focuses on
               whether the convicted offenses were perpetrated on different victims at different
               times). See also: U.S. v. Deroo, 304 F.3d 824 (4th Cir. 2002) (three burglaries of
               three different cabins on three different lakes with three different owners, even
               where occurred within one hour of each other were separate crimes).

          2.      “CONVICTED IN ANY COURT OF A CRIME PUNISHABLE BY A
               TERM EXCEEDING ONE YEAR”

               The ACCA states that its provisions are triggered by “three previous convictions
               by any court referred to in section 922(g)(1).” 18 U.S.C. § 924(e)(1). In turn,
               section 922(g)(1) refers to “any person who has been convicted in any court, of a
               crime punishable by imprisonment for a term exceeding one year.” One has to refer
               to the definitions section of the statute to find the meaning of the term “crime
               punishable by a term exceeding one year.” 18 U.S.C. § 921(a)(20). The term does
               not include:

                      (A) any Federal or State offenses pertaining to
                      antitrust violations, unfair trade practices,
                      restraints of trade, or other similar offenses
                      relating to the regulation of business practices,
                      or
                      (B) any State offense classified by the laws of
                      the State as a misdemeanor and punishable by
                      a term of imprisonment of two years or less.

                      What constitutes a conviction of such a crime
                      shall be determined in accordance with the law
                      of the jurisdiction in which the proceedings
                      were held. Any conviction which has been
                      expunged, or set aside or for which rights
                      restored shall not be considered a conviction
                      for purposes of this chapter, unless such a

Page 19
                      pardon, expungement, or restoration of civil
                      rights expressly provides that the person may
                      not ship, transport, possess, or receive
                      firearms.
                   18 U.S.C. § 921(a)(20)

               Of note here is the language barring from consideration as a predicate a prior State
               misdemeanor (as so-labeled by the state where the conviction was sustained) that is
               punishable by two years or less.

          3.       “CONVICTED IN ANY COURT:” FOREIGN CONVICTIONS?

               Circuits are split on whether, and when, foreign convictions can count as predicates
               under the ACCA. See U.S. v. Concha, 233 F.3d 1249, 1256 (10th Cir. 2000)(There
               are policy reasons to believe that Congress intended to include previous foreign
               convictions (foreign criminals are likely to be as dangerous as domestic criminals),
               but there are equally strong policy reasons to believe that Congress did not so
               intend (unfair foreign convictions can be challenged with difficulty, if at all). The
               legislative history does not illuminate the meaning of "convictions by any court."
               For these reasons, and contrary to the Fourth and Sixth Circuits, we believe that the
               statute is ambiguous. In such a situation, we are guided by the rule of lenity, that
               we "will not interpret a federal criminal statute so as to increase the penalty that it
               places on an individual when such an interpretation can be based on no more than a
               guess as to what Congress intended."). But see, U.S. v. Atkins, 872 F.2d 94 (4th
               Cir. 1989) (conviction in English Crown Court for unlawful possession of a firearm
               counts as predicate under ACCA); U.S. v. Winson, 793 F.2d 754 (6th Cir. 1986)
               (Swiss conviction can serve as predicate under ACCA); U.S. v. Small, 183 F.Supp
               2d 755 (W.D. Pa. 2002) (Japanese conviction counts as predicate for ACCA).

          4.       JUVENILE DELINQUENCY

               As noted in the definition of “violent felony,” a juvenile adjudication can count as a
               predicate if it involved “the use or carrying of a firearm, knife, or destructive device
               that would be punishable by imprisonment for such term if committed by an adult.”
               18 U.S.C. § 924(e)(2)(B). The 9th Circuit, however, has held that juvenile
               adjudications that did not afford the defendant the procedural necessities of a jury
               trial and proof beyond a reasonable doubt cannot be used to enhance a sentence
               under the ACCA. U.S. v. Tighe, 266 F.3d 1187, 1195 (9th Cir. 2001); but see, U.S.
               v. Smalley, 294 F.3d 1030, 1033 (8th Cir. 2002)(because juvenile defendants have
               the rights to notice, to counsel, to confront and cross-examine witnesses, and the
               privilege against self-incrimination, they can be characterized as “prior convictions”
               which can be used to enhance sentences). Where the government seeks to enhance a
               sentence based upon a prior juvenile adjudication, therefore, at least Tighe calls for
               an examination not only of the “violent felony” alleged in the prior adjudication, but
               also of the particular state juvenile procedure rules applied.

               More generally, the categorical approach (discussed below) must be applied to
               determine whether the particular juvenile prior required a finding that the weapon
Page 20
                   was used. If the prior did not entail such a finding (or an admission to that
                   element), that prior likely will not qualify as a predicate under the ACCA. See U.S.
                   v. Richardson, 313 F.3d 121, 125-27 (3rd Cir. 2002)(Defendant's prior state court
                   juvenile adjudication for robbery, criminal conspiracy, theft by unlawful taking,
                   receiving stolen property, simple assault, and possessing an instrument of crime
                   could not be counted as predicate offense under ACCA where none of the criminal
                   statutes underlying the juvenile adjudication required fact finder to find that
                   defendant used a firearm, knife, or other destructive device, nor was it otherwise
                   unequivocally established that defendant committed violent felony during
                   commission of juvenile offenses).

III.   U.S. v. TAYLOR: THE CATEGORICAL APPROACH

       A.               THE PRINCIPLE

            Taylor v. U.S., 495 U.S. 575 , 602, 110 S.Ct. 2143 (1994), holds that a sentencing court
            must look only to the statutory definition of the prior offense, not the underlying facts, to
            determine whether a prior conviction is a violent felony. Id. at 600. Although Taylor
            involved an ACCA enhancement, its holding has been applied to the analysis of all
            sentencing enhancements, including the Career Offender Guideline enhancement.

            At times, the defense may want the court to look at the underlying conduct, because it
            mitigates what the bare criminal record shows. Taylor’s categorical approach usually
            precludes such an inquiry – unless the indictment or charging document is vague as to what
            the client actually was found guilty of. For example, in U.S. Allen, 282 F.3d 339 (5th Cir.
            2002) the COA said the trial court could not reclassify the prior drug conviction based on
            the police report which showed the defendant delivered less than 1/4 gram of crack. The
            defendant pleaded guilty to a charge of delivering less than 28 grams of cocaine. Under
            current state law, the offense no longer qualified as a “serious drug offense.” The COA
            reversed holding the trial court could not look to the police report for quantity even though
            the indictment did not sate an actual quantity of drugs. However, defense counsel should
            argue that a look at the underlying case’s PSR or plea colloquy is permissible under Taylor,
            and may also have the collateral beneficial effect of fleshing out some mitigating
            circumstances in the prior conviction.

       B.           THE “MODIFIED” CATEGORICAL APPROACH: GETTING BEYOND
            THE PRIOR STATUTE OF CONVICTION

            Where the prior statute of conviction is ambiguous (for example, whether the prior
            conviction requires “physical force” as an element), the sentencing court, can look at the
            indictment, the judgment of conviction or other similar document, the transcript of guilty
            plea colloquy, to determine the actual elements found to convict the defendant of the prior.
            See, e.g., U.S. v. Jackson, 177 F.3d 628, 631 (7th Cir. 1999); U.S. v. Hill, 131 F.3d 1056
            (D.C. Cir. 1997)(remanded to determine whether prior conviction for attempted robbery
            qualified as COV where statutory definition of attempted robbery here included non-
            violent conduct; sentencing court erred in relying only on indictment); ; U.S. v. Bennett, 108
            F.3d 1315, 1317 (10th Cir. 1997); U.S. v. Watkins, 54 F.3d 163 (3d Cir. 1995); U.S. v.
            Spell, 44 F.3d 936 (11th Cir. 1995); U.S. v. Smith, 10 F.3d. 724, 733 (10th Cir. 1993)(also
Page 21
          holding that ambiguities in statutory language should be resolved “in favor of narrowly
          interpreting the Career Offender provisions”). Although state law is not controlling, a
          federal court may look at a state’s interpretations of a statute, to determine if the particular
          offense is a COV or C/S offense. U.S. v. Wood, 52 F.3d 272 (9th Cir. 1995), n.4.
          At times, however, an inquiry into underlying conduct is not necessarily beneficial to a
          client. In some circumstances, advocating for a strict categorical approach that looks only
          to the charging document and count of conviction, can be the best position for the client.
          See, e.g., U.S. v. Hicks, 122 F3d 12 (7th Cir. 1997) (where original charge indicated
          defendant charged with burglary of a dwelling – a COV – but defendant ultimately pled to
          burglary of a building, district court could not “peek behind the information” to find that
          the burglary was actually one of a dwelling); U.S. v. Gaitan, 954 F.2d 1005, 1008 (5th Cir.
          1992)(error for district court to look at defendant’s underlying conduct, resulting in the
          prior conviction for possession being viewed as a possession with intent); but cf. U.S. v.
          Delgado, 288 F.3d 49, 56 (1st Cir. 2002)(district court could rely on police report to
          determine that prior burglary involved a dwelling, and therefore could serve as predicate for
          Career Offender sentencing enhancement).

          Where the conduct that occurred in an underlying case is more prejudicial than the actual
          conviction on record, the government should be reminded that the conduct originally
          charged is not relevant - only those acts for which defendant was convicted are to be
          analyzed in determining whether a qualifying predicate offense is present. The Career
          Offender provision specifies this point in U.S.S.G. § 4B1.2, comment (n.2). See also, U.S.
          v. Arnold, 58 F.3d 1117 (6th Cir. 1995)(adopting a strict categorical approach, where “ ‘it
          is not only impermissible, but pointless for the court to look through to the defendant’s
          actual criminal conduct’ ”), quoting U.S. v. John, 936 F.3d 763, 767 (3d Cir. 1991); U.S. v.
          Wagner, 994 F.2d 1467, 1474 (10th Cir. 1993)(offense charged, rather than that offense
          and all relevant conduct, is controlling for purposes of determining whether a qualifying
          predicate for Career Offender purposes).

              1. WHAT EVIDENCE MAY THE COURT CONSIDER?

                 Certificates of disposition from county clerk, stating that the "records on file
                 indicate" that the defendant's prior convictions were for criminal possession of a
                 controlled substance with intent to sell, did not conclusively indicate the statute of
                 conviction, so as to establish predicate offenses for Career Offender sentencing
                 enhancement, and thus defendant was entitled to rely on easily produced court
                 documents, such as a plea colloquy, in order to establish that he was not convicted
                 of a statute qualifying as a predicate offense, where it was not clear what records
                 the clerk relied on or whether he read them correctly, and though the indictments
                 charged defendant with possession with intent to sell, it was not clear that this was
                 the statutory offense to which he pleaded guilty. U.S. v. Hernandez, 218 F.3d 272,
                 278-79 (3rd Cir. 2000); see also, generally, U.S. v. Franklin, 235 F.3d 1165, 1170
                 (9th Cir. 2000) (providing review of 9th Circuit cases indicating what documents
                 can and cannot be considered to show predicates) and U.S. v. Matthews, 278 F.3d
                 880 (9th Cir. 2002) (en banc) (priors for burglary and attempted burglary: PSR gave
                 description of crimes but did not include specific statutes of conviction or certified
                 copies of judgments. COA said court may use PSR plus “a variety of sources

Page 22
                  including the statutes of conviction themselves”, “copies of the judgments of
                  conviction” or “other documentary evidence that ‘clearly establishes’ the statutes
                  under which [the defendant] was convicted or the elements of those statutes.”
                  Moreover, remand for re-sentencing was on an “open record”.

                  Where jury instructions are not available, charging papers alone are not sufficient to
                  determine if a prior jury conviction was for a “violent felony” under section 924(e).
                  U.S. v. Parker, 5 F.3d 1322, 1327 (9th Cir. 1993)(reasoning that the Taylor inquiry
                  focuses on ensuring that the jury actually found all the requisite facts to render the
                  offense a “violent felony”). Charging papers are also insufficient when
                  accompanied with a PSR. U.S. v. Franklin, 235 F.3d 1165, 1172 (9th Cir. 2000).

                  A district court may not rely on arrest affidavits to prove whether the prior
                  conviction is “controlled substance offense” for Career Offender purposes; the
                  conduct for which defendant is convicted is all that counts. U.S.S.G. § 4B1.2,
                  comment (n.3); U.S. v. Hernandez, 145 F.3d 1433 (11th Cir. 1998). In the 11th
                  Circuit case of Hernandez, the defendant had a prior conviction under a Florida
                  statute that made it unlawful “for any person to sell, purchase, manufacture,
                  deliver, or possess with the intent to sell a controlled substance.” The judgment of
                  conviction did not make clear which of those actions the defendant was actually
                  convicted of; since purchasing drugs is not a C/S offense, district court looked at
                  affidavits of arrest to clarify the nature of offense defendant was arrested for. On
                  remand, the district court was instructed only to look at “easily produced and
                  evaluated court documents, such as any helpful plea agreements or plea transcripts,
                  any presentencing reports adopted by the sentencing judges, and any findings made
                  by the sentencing judges” in the underlying case.

           2.   CAN UNDERLYING CONDUCT BE USED AS BASIS FOR DOWNWARD
                  DEPARTURE?

                      A limited inquiry into defendant’s underlying conduct in prior case may be
                  made to determine if a downward departure is warranted. U.S. v. Harris, 165 F.3d
                  1062, 1068 (6th Cir. 1999); see also, U.S. v. Hill, 131 F3d. 1056, 1064 (D.C. Cir.
                  1997); U.S. v. Spell, 44 F3d 936, 939 (11th Cir. 1995).



V.    BURDEN OF PROOF TO SHOW PRIOR CONVICTIONS

      A.               PREPONDERANCE OF EVIDENCE

           Initially, the burden is on the government to show the existence of the prior conviction. If
           the defendant challenges the validity of that prior, then the burden generally shifts to the
           defendant to show a procedural defect. As discussed further below, the only defect a
           defendant may raise against a prior conviction in a subsequent sentencing proceeding is a
           violation of the Sixth Amendment right to counsel.
           The government must demonstrate the existence and nature of the prior by a
           preponderance of the evidence. Some courts, however, have found that the government
Page 23
           may be held to a higher standard, where the prior conviction enhances the sentence
           markedly. A summary of how most of the circuits have handled this notion is provided
           below.

      B.           CAN THE GOVERNMENT BE HELD TO A “CLEAR AND
           CONVINCING EVIDENCE” STANDARD OF PROOF TO SHOW THE PRIOR
           PREDICATES?

           1.   YES, AT TIMES:

                  Most circuits have recognized that where an enhancement has a disproportionate
                  impact on a client’s sentence, a higher standard of proof than the customary
                  “preponderance of evidence” standard applied at sentencing, may be required.
                  Courts are fond of stating that the sentence enhancement must not become “the tail
                  that wags the dog of the substantive offense.” McMillan v. Pennsylvania, 477 U.S.
                  79, 88, 106 S.Ct. 2411 (1986). Circuits differ widely, however, regarding when an
                  enhancement’s impact is disproportionate enough to trigger a higher standard of
                  proof. The following is a list of some cases in which a higher standard of proof was
                  applied. U.S. v. Jordan, 256 F.3d 922 (9th Cir. 2001); U.S. v. Mezas de Jesus, 217
                  F.3d 638 (9th Cir. 2000); U.S. v. Hopper, 177 F.3d 824 (9th Cir. 1999); U.S. v.
                  Kikumura, 918 F.2d 1084 (3d Cir. 1990); U.S. v. Julian, 922 F.2d 563 (10th Cir.
                  1990).

           2.   YES, BUT WHO KNOWS WHEN:

                  The following cases acknowledged that a higher standard of proof should be applied
                  to prove an enhancement in certain instances, without deciding when. U.S. v.
                  Geralds, 158 F.3d 977 (8th Cir. 1998); U.S. v. Billingsley, 978 F.2d 861 (5th Cir.
                  1992); U.S. v. Concepcion, 983 F.2d 369 (2d. Cir. 1993).

           3.   NOT LIKELY:

                                              The Seventh and Fourth Circuits have consistently
                  rejected the application of a higher standard of proof for any sentencing
                  enhancements. See U.S. v. Ewers, 54 F.3d 419 (7th Cir. 1995); U.S. v. Urrego-
                  Linares, 879 F.2d 1234 (4th Cir. 1989).

V.    CHALLENGING THE PRIOR CONVICTION

           Not infrequently, clients contend that a prior conviction or another is false, or was based
           on incorrect facts. As a result of the Supreme Court’s decision in Custis, there is nothing
           an attorney can do about such claims, once that prior conviction is final, and appeals are
           exhausted or waived. In Custis v. U.S., 511 U.S. 485,114 S.Ct. 1732 (1994), the Supreme
           Court held that, other than an attack on a violation of the right to counsel, a defendant being
           sentenced under the ACCA otherwise has no right to collaterally attack his prior state
           convictions at the time of the federal sentencing. Id.; see also, U.S. v. Daniels, 532 U.S.
           374, 121 S.Ct. 1578 (2001) (extending Custis to 2255 proceedings, and finding that a
           defendant cannot challenge a federal sentence based on an allegedly invalid prior conviction
Page 24
           used to enhance that federal sentence.) This approach (questioning the prior conviction),
           therefore, is not likely to be the most fruitful.

  A. RAISING A VIOLATION OF RIGHT TO COUNSEL

           Custis still leaves the following questions regarding any prior conviction: Was the client
           represented by counsel? If not, did the client waive counsel? If there was a waiver of
           counsel, was it knowing and voluntary?

           It is most likely that the defense will bear the burden of showing that the right to counsel
           was violated. In strategizing a means of raising a violation of the right to counsel, it is
           helpful to consult the line of cases arising out of Alabama v. Shelton, 535 U.S. 654, 122
           S.Ct. 1764 (2002). Although this case does not relate to the Career Offender or ACCA
           provisions, it has and will continue to generate case law regarding the impact of prior
           offenses on sentencing, Sixth Amendment violations and how to establish such violations.
           In Shelton, the Supreme Court held that the Sixth Amendment does not permit activation of
           a suspended sentence upon an indigent defendant's violation of the terms of his probation,
           where the State did not provide him counsel during the prosecution of the offense for
           which he is imprisoned. In response to Shelton, some districts are raising the argument that
           a prior uncounseled misdemeanor cannot be counted in a defendant’s criminal history.
           District courts are responding in several was. While some districts are dismissing the
           argument outright, some districts are holding hearings to determine whether a particular
           defendant was represented in the previous case sought to be counted. In some areas, the
           government is given the burden to show the prior misdemeanor was not obtained without
           counsel; in at least one of these districts, the prosecutor on the former case may be called to
           attest that the individual had an attorney at the time of the misdemeanor. In other districts,
           a presumption of regularity is given to the prior conviction, and the defense is given the
           burden to show that the conviction was obtained in violation of the right to counsel (that is,
           there was none, and the waiver was not knowing and voluntary).
           With sentencing enhancements under the Career Offender provision and the ACCA, the
           defense can follow similar procedures to raise the question of a Sixth Amendment violation
           – bearing in mind that this area is not the most fruitful for the defense . . .

      B.             WHAT IF PRIOR CONVICTION IS STILL BEING REVIEWED AT TIME
           OF      FEDERAL SENTENCING?

           A defendant can, however, reopen federal sentencing proceeding if defendant was
           successful in challenging a prior conviction that served as predicate for federal sentencing
           enhancement. Because of this right to reopen sentencing, a defendant who has not yet
           challenged the prior conviction, or who is in the midst of challenging it, may not be able to
           postpone the federal sentencing pending the results of the challenge to the prior – federal
           sentencing proceeding may proceed, and defendant is free to later challenge the
           enhancement. U.S. v. Doe, 239 F.3d 473, 475 (2d Cir. 2001); U.S. v. Turner, 183 F.3d
           474, 477 (6th Cir. 1999)(defendant cannot challenge prior state conviction in federal
           sentencing; must proceed in state court first - or through 2254 petition - then reopen
           federal sentencing).



Page 25

								
To top